Digital Commons at St. Mary's University Faculty Articles School of Law Faculty Scholarship 1994 A Thrice-Told Tale, or Felix the Cat Michael S. Ariens St. Mary's University School of Law, [email protected] Follow this and additional works at: https://commons.stmarytx.edu/facarticles Part of the Law Commons Recommended Citation Michael S. Ariens, A Thrice-Told Tale, or Felix the Cat, 107 Harv. L. Rev. 620 (1994). This Article is brought to you for free and open access by the School of Law Faculty Scholarship at Digital Commons at St. Mary's University. It has been accepted for inclusion in Faculty Articles by an authorized administrator of Digital Commons at St. Mary's University. For more information, please contact [email protected]. A THRICE-TOLD TALE, OR FELIX THE CAT Michael Ariens* Few legal scholars would dispute the constitutional, historical, and po- litical importance of the events of 1937, when the Supreme Court, faced with President Franklin Delano Roosevelt's plan to reorganize the federal judi- ciary, ultimately approved a sweeping interpretation of governmental au- thority to implement socioeconomic legislation. The course of events, al- though frequently canvassed, has yielded conflicting interpretations of the actions and motivations of the Justices who took part in the fabled "switch in time that saved nine." In this Article, Professor Ariens argues that Felix Frankfurterplayed a pivotal role in disseminating a particularhistory of the events of 1937. Reversing his own privately expressed position of dismay at the Court's actions in 1937, Frankfurter, in a memorial tribute to Justice Owen Roberts in 1955, revised the history of the events of 1937, a history that placed the Court above the fray of politics in its decisionmaking. Pro- fessor Ariens argues that the events of 1954-z959, the era of Brown v. Board of Education, played an integralpart in shaping Frankfurter'srevised history of 1937 and led to its widespread acceptance. Professor Ariens draws, from the interrelationshipof these two constitutional events, telling lessons about post-War legal thought and the evolution of constitutionalhistory. "You could precisely quantify the influence of Shakespeare on T.S. Eliot." "But my thesis isn't about that," said Persse. "It's about the influ- ence of T.S. Eliot on Shakespeare." "That sounds rather Irish, if I may say so," said Dempsey, with a loud guffaw. His little eyes looked anxiously around for support. DAVID LODGE, SMALL WORLD1 I. Much of the future of American law depends on how the events of 1937 are interpreted. DONALD H. GJERDINGEN, THE POLITICS OF THE COASE THEOREM AND ITS RELATIONSHIP TO 2 MODERN LEGAL THOUGHT Influence runs against, as well as with, time. Our appreciation of the constitutional crisis of 1937 depends as much on the events oc- * Professor, St. Mary's University School of Law. Thanks to Don Gjerdingen and Steve Smith for their comments and suggestions on an earlier draft, and to Rich Friedman for his comments and suggestions on a later draft. Many thanks to my research assistant Connie Liem for her excellent help, and to Dean Barbara Bader Aldave for financially supporting this research. I DAVID LODGE, SMALL WORLD 6o (paperback ed. 1986). 2 Donald H. Gjerdingen, The Politics of the Coase Theorem and Its Relationship to Modern Legal Thought, 35 BUFF. L. REV. 871, 917 (1986). 1994] A THRICE-TOLD TALE curring after that crisis as on the events leading to it. The "lesson" learned from President Franklin Delano Roosevelt's "Court-Packing Plan" and from the "switch in time that saved nine" depends on the particular instructional manual from which one reads. The manual I intend to present focuses on the importance of Felix Frankfurter. In discussing the historical understanding of the Justices of the Supreme Court, Professor John Henry Schlegel wrote, "there is the problem of Felix Frankfurter."3 Justice Frankfurter remains a problem if one wants to understand twentieth-century legal history. His influence as a law professor and intellectual activist, his influence as a member of the Court, and his influence directing the work of other constitutional scholars must be taken into account when assess- ing constitutional histories. In this Article, I suggest that Justice Felix Frankfurter tried to coordinate history to protect the integrity of the Court as he saw it, and that he succeeded. The Court's power to invalidate state and federal legislative action has always been based on the assumption that the Court exercises judgment rather than will. 4 Although the legislative and executive branches were intended to be political branches and were allowed, within their constitutional power, to impose their will in law, the judiciary was to stand athwart the political process, to exercise judg- ment in deciding cases, and to ensure the supremacy of the Consti- tution. Politics was about power and required a willingness to com- promise; as a result, politicians were to be subject to regular elections. Judging was about protecting the liberty of persons and institutions from the abuses of political power and required adherence to (consti- tutional) principle; therefore, once appointed, federal judges were to remain in office "during good Behaviour."5 These distinguishing char- acteristics necessitated the claims of both judicial independence from politics and judicial nonintervention in politics. 3 John H. Schlegel, The Line Between History and Casenote, 22 LAW & SOC'Y REv. 969, 974 (i988). 4 See THE FEDERALIST No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 196I) ("[The judiciary] may truly be said to have neither FORCE nor WILL but merely judgment ....");see also Court-PackingPlan, in THE OXFORD HISTORY OF THE SUPREME COURT OF THE UNITED STATES 203, 204 (Kermit L. Hall ed., 1992) [hereinafter OXFORD HISTORY OF THE SUPREME COURT] ("[The Court-Packing Plan] reinforced the American people's understanding that law and politics should be separated, and that although the Supreme Court was not wholly above politics, it must not be converted into a political institution."). 5 U.S. CONST. art. III, § I. Alexander Hamilton defended the life-tenure provision as follows: [A]s liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments ... and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. THE FEDERALIST No. 78, supra note 4, at 466. HARVARD LAW REVIEW [Vol. 107:620 The Court's authority to interpret the Constitution was thus linked to the Court's separation from politics. For post-World War II con- stitutional scholars, the most widely known event suggesting that the Court was engulfed in politics was the "switch" by Justice Owen Roberts during the spring of 1937, a switch that many believed was the result of President Franklin Delano Roosevelt's "court-packing" plan. 6 By severing the link between FDR's plan and Justice Roberts's actions in 1937, Felix Frankfurter protected the Court's position as primary interpreter of the Constitution. Reestablishing the Court's authority was again crucial during the last half of the r950s, when the Court's legitimacy as an authoritative constitutional interpreter was at risk as a result of its Brown decisions. 7 Understanding the constitutional crisis of 1937 and its particular relevance to the chal- lenge of Brown in the 195os requires another look at the machinations of Felix Frankfurter. In this manual, Frankfurter plays two roles - one as Supreme Court Justice, and a second as guardian of the Court's virtue. For Felix Frankfurter, the Supreme Court was a temple, a sacred place. 8 It was sacred because the Court decided cases (and interpreted the Constitution) according to the rule of law. The covenant between the Court and "the people" required, the Court to decide cases based on reason and judgment rather than on personal preference or will. As long as the Court upheld its part of this covenant, it remained a revered institution dutifully undertaking its arduous responsibilities. If, however, politics were to intrude into the Court, this intrusion would lead to the Court's "desecration." Politics could infect the Court from without or from within, but no matter what the source, the result would be the same. As both a devoted worshipper and one of its high priests, Justice Frankfurter tended the Court's garden of law from the wilderness of politics. From 1954 to 1959, Justice Frank- furter's challenge was particularly acute; the Court was saddled with the heavy burden of proving that its decisions in Brown were the result of an exercise of judgment rather than will, and Justice Frank- furter's version of the events of 1937 helped to ease that burden. In 1937, the Supreme Court faced a crisis involving its authority to interpret the Constitution. The crisis ended only after it appeared that the wall separating law from politics had crumbled. That reso- lution caused Frankfurter to lash out privately at the intrusion of 6 See infra pp. 627-28. See Brown v. Board of Educ., 347 U.S. 483, 495 (1954) (holding that segregated public schooling violates the Fourteenth Amendment's Equal Protection Clause). On May 31, 1955, the Court announced the desegregation of segregated public schools "with all deliberate speed." Brown v. Board of Educ., 349 U.S. 294, 30 (1955). 8 See infra p. 667. 1994] A THRICE-TOLD TALE politics into the Supreme Court. In a March 30, 1937, letter to FDR, Frankfurter wrote: "And now, with the shift by Roberts, even a blind man ought to see that the Court is in politics, and understand how the Constitution is 'judicially' construed.